August 11, 2008
Federal Acquisitions Regulations Secretariat
Department of Defense
General Services Administration
National Aeronautics and Space Administration
Re: Comments in Opposition of the FAR Docket No. 2008-0001; FAR Case 2007-013, Regarding “Employment Eligibility Verification”
Dear Sir or Madam:
The National Korean American Service & Education Consortium (NAKASEC) submits the following comments opposing the proposed rule which will make it mandatory for federal contractors to use the inaccurate Basic Pilot/E-Verify program to verify all new workers and current employees that are working under federal contracts.
NAKASEC, a national multi-issue civil and human rights organization based within the Korean American community, was founded in 1994 by local community centers. The centers sought to empower and improve the lives of Korean Americans as part of a greater goal of building a national movement for social change. Our mission is to project a national progressive voice for and promote the full participation of Korean Americans in the United States through education, advocacy, and community organizing.
NAKASEC believes that the proposed rule amending the Federal Acquisition Regulations should not be implemented. We are especially concerned about the adverse impacts implementation would have on small businesses and profiling of minority communities. Throughout the immigration history of Korean Americans, the small business sector has made many vital contributions to the growth and prosperity of towns and cities across the United States. One third of all Korean immigrant families are engaged in small business and Korean Americans have the highest rate of entrepreneurship of all ethnic groups, owning more than 135,500 businesses with more than 333,600 employees with gross sales of around $46 billion annually. Thus, the threats posed by Basic Pilot/E-Verify to small business owners are a real danger to the sustainability of community’s livelihood. Also as a racial minority group, we are deeply concerned about the increased potential for abuse by unethical employers ranging from racial discrimination and profiling to illegal employment practices.
We are opposed to the proposed rule mandating use of the Basic Pilot/E-Verify program for federal contractors because: 1) it violates existing laws; 2) the databases upon which the program relies are error-prone and have unacceptably high error rates which misidentify workers as not being authorized to work; 3) there is substantial employer abuse of the program which results in discrimination, racial profiling, and illegal employment practices by employers; 4) the proposed rule is especially detrimental to the Department of Homeland Security (DHS) and Social Security Administration (SSA); and 5) it will impose undue burden on small businesses by increasing administrative operating costs.
Making this program mandatory for federal contractors poses a great danger to hundreds of thousands of authorized workers because of the severe flaws and problems with the program which have not been fixed. The proposed change would immediately apply to at least 200,000 employers and approximately 4 million employees. Mandating the use of a system that does not work will be disastrous for both federal contractors and the U.S. economy.
The proposed rule should not make the Basic Pilot/E-Verify program mandatory for federal contactors because of the following reasons:
It is illegal; existing federal laws say the program is voluntary.
It is illegal and unconstitutional to expand existing federal laws by making the voluntary program mandatory without going through legislative process. The existing statute that created Basic Pilot/E-Verify explicitly requires that participation in the program be voluntary for employers, with very limited exceptions. Since only Congress has the authority to amend statutes, mandating the use of the system is an unauthorized expansion of existing law.
It is illegal to expand enrollment to existing employees.
Similarly, the proposed rule’s requirement that employers re-verify their current employees is illegal because by law the program can only be used to verify newly-hired employees within the first 3 days of hire. Again, this expansion of existing law is illegal and is another example of an unauthorized attempt to carry out its functions outside of the agency’s authority.
The program is inaccurate and unreliable.
Due to the program’s inaccuracies, it has already been widely documented that authorized workers have not been confirmed and as a result, prevented from working. However, these flaws have not been properly addressed or corrected. Mandating a program for hundreds of thousands of federal contractors and the millions of workers they employ, based on a program which has not moved out of the pilot stage and has a poor success rate is dangerous for employers, employees and the U.S. economy.
It will lead to increased discrimination against people with “foreign” appearance.
The program will be likely abused by some employers and used for illegal purposes such as racial discrimination and retaliation. Government-commissioned reports have already shown that some employers who use Basic Pilot/E-Verify engage in illegal employment practices, and evidence suggests that such employers, when hiring, may discriminate against workers who look, sound or dress “foreign,” or who have “foreign-sounding” names. Mandating use of the program will pressure federal contractors to give preference in hiring to applicants they believe “look like” U.S. citizens. In addition, mandating federal contractors to use Basic Pilot/E-Verify without addressing the problem of discriminatory practices by employers will have an even greater impact on the number of employees who experience discrimination at the hands of unscrupulous employers.
The proposed rule has a serious impact on all federal agencies, but is especially detrimental to DHS and SSA.
SSA estimates that making the program mandatory will result in 3.6 million extra visits or calls to SSA field offices per year, which would result in 2,000 to 3,000 more “work years,” the necessity of hiring substantially large number of new staff, and hundreds of millions of dollars more in expenses each year. As of January 2008, over 750,000 Social Security cases were awaiting decisions on disability claims, with an average wait time per case of 499 days. Over 50%of people who call a local SSA field office with inquiries receive a busy signal. Since Basic Pilot/E-Verify relies on sometimes outdated or erroneous information in SSA databases, requiring federal contractors to use it could result in a massive overload to SSA systems as workers try to correct their records. DHS is notorious for its inability to resolve existing backlogs in processing applications to the United States Citizenship & Immigration Services (USCIS), an agency within DHS. Any attempts to make Basic Pilot/E-Verify mandatory, even if only for federal contractors, would spiral the agency further into bureaucratic gridlock.
It will increase administrative operating costs for small businesses.
Generally, employers will need to bear opportunity cost: they must give up some operating time in order to carry out the requirements of the regulation. Employers will also need to purchase a computer system with Internet access and train employees in order to be able to operate the Basic Pilot/E-Verify system, as well as spend time on processing employee verifications. Most importantly, the largest costs will be incurred because of the difficulty in resolving Tentative Non Confirmations and correcting employee records. Administrative inefficiency and delay will result in an increase of employee replacement (turnover) costs, which will worsen the labor shortage situation that small businesses face.
In sum, NAKASEC strongly opposes the proposed rule amending the Federal Acquisition Regulations which would make the Basic Pilot/E-Verify program mandatory for federal contractors. We request that the proposed rule not be implemented as a whole. If you have any questions or comments, please contact us.
Eun Sook Lee
National Korean American Service & Education Consortium (NAKASEC)
900 S Crenshaw Blvd., Los Angeles CA 90019
TEL 323.937.3703 ext. 205